COVID-19 and its effects on commercial litigation

July 24, 2020 Mary

INTRODUCTION
It is no longer news that Nigeria is among the countries affected by the COVID-19 pandemic, and the country has been taking measures to curb the spread of the disease and ensure treatment of those already infected. In a bid to achieve this, several directives had been issued by the Federal Government and its Agencies. The directive of the National Judicial Council and the Chief Justice of Nigeria mandating Heads of Courts to suspend Court proceedings, except for matters that are urgent, essential or statutorily time-bound, for an initial period of two weeks at the first instance, effective from March 24, 2020. In addition to the above directive, the President of Nigeria, His Excellency Muhammadu Buhari, had in a press statement issued a directive for the lockdown in major cities which include; Lagos State, Federal Capital Territory, Abuja, and Ogun State. The above circumstances have an endearing impact on commercial litigation practice which needs to be analysed.

LIMITATION OF ACTIONS
The effect of an action commenced outside the statutory timeline is that a plaintiff had a cause of action loses the right to enforce same . The action would have become statute-barred as per the provisions of the various limitation laws .
In light of the above situation, it is believed that time should not run against a Party within a period on which he cannot by any possibility take legal steps to have a wrong remedied due to an act of God, pandemic or Government’s policy or directive relying. This lends credence to the maxim of equity “lex non cogit ad impossibilia” which means that the law does not compel a man to do that which he cannot possibly perform. The writers, therefore, recommend that concerning limitation period for filing an action, a Party who feels that the action has been caught up by statute of limitation should be allowed to apply to Court to show cause why the action should be filled outside the Statute of Limitation.

FILING OF PROCESSES
What is the fate of a Party who could not file his Court processes (memorandum of appearance) timely, due to safety measures implemented by the Government to curtail the spread of the Coronavirus? In I.T.N.A.G.P.P.E. v. P.C.N. , the Court of Appeal held that where a statute provides a specific time for filing of a process, and it is not filed within the period specified, the reason for the delay in not complying must be reasonable. The Party in default must seek for extension of time.
It is opined that in the present circumstance, the requirement of payment of default fees should not apply for actions affected by the COVID-19 pandemic. The applicant needs to prove to the Court, that the delay in filing the processes was occasioned by the outbreak of the pandemic and not the indolence of the Party or counsel.

APPEAL ACTIONS
The Court of Appeal Act provides for the procedure for filing an appeal. Section 25 provides that a Party seeking to appeal shall file a notice of appeal or application for leave to appeal within fourteen days or three months respectively .
In the present dispensation, a person whom judgement was given against before the COVID-19 pandemic runs the risk of inability to appeal within the statutory timeline. However, this does not pose much threat as the Party will be allowed to file an application for extension of time to Appeal showing cause that the inability to appeal within time was for circumstances beyond its control. This is so as the Act provides in section 25(4) that the Court of Appeal may extend the periods prescribed in subsections (2) and (3) of the section. The Courts are, however, urged to pay attention to the peculiarities of each case and treat each application for extension of time differently according to its peculiar facts and circumstances avoid indolent Parties taking advantage of the situation.

INJUNCTIONS
The Supreme Court in Ohakim v Agbaso & Ors defined injunction as a judicial process or mandate operating in parsonam by which, upon certain established principles of equity, a Party is required to do or refrain from doing a particular thing. An injunction can either be interim or interlocutory. Interim injunction is a temporal order granted pursuant to a motion exparte pending the hearing of the Motion on Notice. While an Interlocutory Injunction is granted pending the hearing of the substantive suit. In any case, a Party retains the right to appeal the interlocutory injuction. Where an injunction is granted and the Respondent cannot take steps to have the order set asde due to the prevailing restrictive polices, made in response to the COVID-19 pandemic, what would be the Respondent’s remedy where the Applicant keeps exploiting the order of the Court?

The only remedy for a Respondent whom an injunction order runs against within this period is for the Party to apply to the Court under the urgent and important proceedings as stated in the Directives. However, the parameter for a matter to qualify as urgent is blurred and not clearly defined. It is recommended that there should be a definition of what amounts to “urgent” in the Directives instructing Courts to hear urgent matters so that the Parties caught under this circumstance would know the appropriate action to take.

FINAL WRITTEN ADDRESSES AND DELIVERY OF JUDGEMENT
Section 294 (1) of the Constitution provides that every Court shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses. Where the Court delivers its judgement after the period of ninety days from the adoption of final addresses due to the COVID-19 pandemic, the judgement will remain valid unless it is established that the delay occasioned a miscarriage of justice to any of the Parties. However, in light of the lockdown, the Courts can issue notices to the Parties for the date of delivery of judgement and thereafter circulate the judgement to the Parties via email. Another option is for the Court, where equipped with the necessary technology, to deliver the Judgement in Court with the Paries in attendance via videoconferencing platforms. This approach will also be applicable for filling and adoption of Final Addresses.

CONCLUSION
The COVID-19 pandemic presents a challenge to litigation and normal Court practice which underscores the need for a virtual Court. Magistrate Courts in the United Kingdom have been able to conduct hearings of criminal cases using live video links between the Court and police stations since 2009. This means defendants can appear in Court without being physically present . Fredric I. Lederer extensively discussed the concept of virtual Courtroom in, his book “The Road to the Virtual Courtroom? A Consideration of Today’s — and Tomorrow’s — High Technology Courtrooms” . Nigerian Courts, should take measures to ensure that facilities are put in place for the adoption of virtual Courtrooms, which would enable the Courts to function for up to 80% of their capacity in light of the lockdown. When the Courts are well equipped with technological gadgets, nothing would impede the Court from hearing the matters via teleconference and thus implement the remote hearing approach.